Two years ago, an unusual matter came before my court: a petition for posthumous bar admission brought by the descendants of Hong Yen Chang, a native of China. Chang came to America in 1872 at age 13. He graduated from the Phillips Academy, Yale College and Columbia Law School, and passed the bar exam. But in 1890 my court denied him a law license because the Chinese Exclusion Act prohibited him from becoming a citizen, then a prerequisite for bar membership. In 2015, my court admitted Chang to the bar, calling his exclusion “a grievous wrong” that denied our society “the important benefits of a diverse legal profession.”
For most of our nation’s history, Asians were excluded from the legal profession. But much has changed in recent decades. From 1985 to 2005, Asian Americans were the fastest growing minority group in the bar. Today. there are more than 50,000 Asian American lawyers, compared with 10,000 in 1990. More than 7,000 Asian Americans are now studying law, up from 2,300 in 1986.
And yet, Asian Americans have made limited progress in reaching the top ranks of the profession. Although Asian Americans are the largest minority group in big firms, they have the highest attrition rate and rank lowest in the ratio of partners to associates. Asian Americans comprise 6% of the U.S. population, but only 3% of federal judges and 2% of state judges. Three out of 94 U.S. attorneys in 2016 were Asian American; only four out of 2,437 elected district attorneys in 2014 were Asian American.
These data may partly reflect Asian Americans’ relative newcomer status and lack of seniority in the legal profession. But there are other challenges as well.
Although Asian Americans are regarded as having the ‘hard skills’ required for competent lawyering, they are often thought to lack ‘soft skills.’
A new study that a team of Yale law students and I co-authored, which included a national survey of more than 600 Asian American lawyers, found that Asian Americans identify lack of access to mentors and contacts as a primary barrier to career advancement. Notably, 95% of our survey respondents had no parent with a law degree. Law is unfamiliar terrain to many Asian American families, including mine. The first lawyer I ever met was my congressman, the late Robert T. Matsui, who sponsored me to be a page in the U.S. House of Representative. If it weren’t for Bob, I’m not sure I would have considered law or become a judge.
In addition, over half of our survey respondents said they “sometimes” or “often” experience implicit discrimination in the workplace. Some reported incidents in which colleagues or court personnel did not recognize them as lawyers. Female attorneys, in particular, reported being mistaken in court for the translator, court reporter, paralegal, client or even a client’s girlfriend.
Although Asian Americans are regarded as having the “hard skills” required for competent lawyering, they are often thought to lack “soft skills.” Our survey respondents said they are perceived as hard-working, responsible and careful, but not as empathetic, assertive or creative. Asian Americans are stereotypically the “worker bees” in law firms; many struggle in promotion processes that involve subjective criteria such as likability, gravitas and leadership potential. As one survey respondent said, “Somehow I am the only one staying back to cover the team assignments when the others went out for yoga and wine.”
Our study also found that few Asian Americans went to law school in order to gain a pathway into government or politics. Compared with other racial or ethnic groups, Asian Americans gravitate toward law firms and business settings, and they are least likely to work in government early in their careers. Few become top prosecutors, elected officials or judges.
Greater penetration into public leadership roles is critical if the growing number of Asian American attorneys is to translate into greater influence throughout society. With issues such as immigration, education, voting rights and national security in the headlines, the quality of our public policies depends on everyone having a seat at the table, including Asian Americans.
Public service is also important to dispelling the stereotype of Asian Americans as perpetual foreigners. Bob Matsui was 6 months old when he and his family were incarcerated at Tule Lake as part of the internment of people with Japanese ancestry during World War II . Despite that experience, or perhaps because of it, Bob entered public service and left no doubt about the love and loyalty he felt toward his country.
There is no single way to create a more inclusive legal profession. But the first step is awareness. Asian Americans have often been neglected because of their small numbers, and monitoring progress is essential in law firms and other institutions where lawyers work.
Beyond that, senior attorneys of all ethnic groups can be more intentional in mentoring Asian American colleagues. In addition to Bob, I have been fortunate to have mentors from various backgrounds, including the two federal judges for whom I clerked. The common denominator was that they took a sustained interest in my career and were willing to use their wisdom, contacts or clout to help me.
We also have to change perceptions of the roles that Asian Americans can play in our society. Having watched countless episodes of the television series “Law & Order,” I am struck that this popular portrayal of the American justice system never seemed to cast an Asian American as an attorney or a judge. The only regular Asian American character was a forensic scientist.
It is a chicken-and-egg problem: Given societal perceptions, it is difficult for many Asian Americans to envision themselves as leaders in law; without more Asian Americans becoming leaders, it is difficult to change perceptions.
Despite these challenges, Asian Americans have made huge strides in law and they are poised for more breakthroughs. The pool of legal talent among Asian Americans has never been greater. President Obama appointed 20 Asian Americans to the federal bench — more than all the Asian Americans who had previously served as federal judges in U.S. history — and President Trump’s first successful federal appeals court nominee, Amul Thapar, is of South Asian descent.
U.S. Supreme Court Justice Sandra Day O’Connor, a trailblazer in the law, once wrote: “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” Building the path to leadership for lawyers of all backgrounds, including Asian Americans, must be part of the unfinished work of the legal profession.
Goodwin Liu is a California Supreme Court justice.